Renner v. Marshall. 1 W.

RENNER and BUSSARD v. MARSHALL.

1 W. 215.

The commencement of another suit for the same cause of action in the court of another State since the last continuance, cannot be pleaded in abatement of the original suit.

If matter in abatement is pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory.

Where the action is brought for a sum certain, or which may be rendered certain by computation, judgment for the damages may be entered by the court without a writ of inquiry.

ERROR to the circuit court for the District of Columbia for Washington county. The defendant in error, at June term, 1813, declared against the plaintiffs in error, in assumpsit, upon an inland bill of exchange, drawn by one Rootes, on Renner and Bussard, and accepted by them; to which declaration they pleaded non assumpsit, and issue was thereupon joined, and the cause was continued to December term, 1813. At that term the plaintiffs in error [*216] appeared, and * pleaded that, after the last continuance, another suit for the same cause of action was commenced, in a state court in Virginia. This plea having been adjudged bad, a final judgment was rendered for the plaintiffs, and the damages assessed by the court.

[* 217 ] * Jones and Key, for the plaintiff in error

Lee, for the defendant in error.

STORY, J., delivered the opinion of the court.

The first question in this case is, whether the commencement of another suit for the same cause of action in the court of another State, since the last continuance, can be pleaded in abatement of the original suit. It is very clear that it cannot. A subsequent suit may be abated by an allegation of the pendency of a prior suit; but the converse of the proposition is, in personal actions, never true. The decision of the circuit court of the District of Columbia, overruling the plea, was therefore correct.

[ * 218 ]

The next question is, whether the judgment rendered on the overruling of the plea ought to have been peremptory, or an award of respondeas ouster. This point is completely settled by authority. If matter in abatement be pleaded puis darrien con

Morean v. United States Insurance Co. 1 W.

tinuance, the judgment, if against the defendant, is peremptory, as well on demurrer as on trial.

The last question is, whether judgment could be entered up for the plaintiff for the amount of his damages by the court, without a writ of inquiry. This also is completely settled by authority in all cases, whether the action is brought for a sum certain, or which may be made certain by computation.

Judgment affirmed, with costs.

13 P. 136.

* Morean v. The UNITED STATES INSURANCE COMPANY. [* 219 ]

1 W. 219.

The insurer on memorandum articles is only liable for a total loss, which can never happen where the cargo, or a part of it, has been sent on by the insured, and reaches the original port of its destination.

Where the ship being cast on shore near the port of destination, the agent of the insured employed persons to unlade as much of the cargo (of corn) as could be saved, and nearly one half was landed, dried, and sent on to the port of destination, and sold by the consignees at about one quarter the price of sound corn; this was held not to be a total loss, and the insurer not to be liable.

ERROR to the circuit court for the district of Pennsylvania. This was an action commenced by the plaintiff in error, upon a policy of insurance, dated the 14th of December, 1812, on goods on board the brig Betsey, at and from Cape Henry, to Lisbon, at a premium of six per cent., on which $5,000 were underwritten by the defendants, and valued at that sum, declared to be against all risks, except British capture, warranted American property. The jury found a verdict for the plaintiff, subject to the opinion of the court, upon the following facts agreed by the parties. The cargo consisted of 4,406 bushels of Indian corn, one hundred barrels of navy bread, and twenty barrels of corn meal. The brig sailed from Baltimore, on the 11th of November, 1812, and from Cape Henry, on the 13th of the same month. She experienced on her voyage many and severe gales of wind. On the 18th of December, [* 220 ] she passed the rock of Lisbon, and came to anchor about four miles below Belem Castle. She leaked considerably, in consequence of the injury she had sustained from the severe gales to which she had been exposed. After passing the rock the wind died

Morean v. United States Insurance Co. 1 W.

away, and the current being adverse, she came to anchor. The master and supercargo landed, went through the customary forms at Belem to obtain a permit to pass the castle, and then proceeded to Lisbon. The health boat visited the brig, and ordered her to get above the castle as soon as possible. On the 19th, she was again exposed to a heavy and fatal gale, and drove ashore near to the Belem Castle, the sea breaking over her, and the crew hanging by the rigging to preserve their lives. The supercargo considered both vessel and cargo as totally lost. By directions of the custom-house, as much of the cargo as could be got out, was unladen by a number of French prisoners, who were employed for that purpose. The cargo was all wet, and the part of it which was then taken out was carried to the fort, where it was spread and dried. From thence it was carried to Lisbon in lighters, and was sold in the corn market by the consignee of the cargo. The quantity so saved and sold amounted to about 1,988 bushels, which was sold at fifty cents a bushel, whereas the price of sound corn was two dollars and twenty-five cents a bushel. The supercargo petitioned for liberty to sell the corn at the place where it was first deposited and dried, which could not be granted, and he was obliged to submit to the custom of [*221] the place, and allow it to be sold at the cornmarket.

The brig was so completely wrecked, that she was sold, with her materials, where she lay, in lots. Had the supercargo been left to the free exercise of his own judgment, he would not have attempted to save any part of the cargo, in consequence of the total damage, and the great expense of saving it. The net proceeds of the cargo were not much more than the expenses of saving it, including those of the supercargo. The port of Lisbon commences above Belem Castle, and the custom of the place is, to discharge cargoes of corn between that castle and Cantara, which latter place is from one to two miles below Lisbon. The vessel never arrived at her port of discharge. On the 22d of December she was entered at the custom-house, by the American vice-consul, which, he said, was necessary; but port dues do not attach to vessels till they pass the castle. Still, as part of the cargo was carried to Lisbon, the entry was made by the consul, and the dues were paid. On the 11th of March, 1813, the plaintiff, having received notice of the shipwreck, offered to abandon, which was refused. Upon these facts, the circuit court gave judgment for the defendants, and the cause was brought by writ of error into this court.

Pinkney, for the plaintiff.

Harper, contrà.

Morean v. United States Insurance Co. 1 W.

WASHINGTON, J., delivered the opinion of the court, and, [ *224 ] after stating the facts, proceeded as follows:

As

All considerations connected with the loss of the cargo, in respect to quantity or value, may, at once, be dismissed from the case. to memorandum articles, the insurer agrees to pay for a total loss only, the insured taking upon himself all partial losses without exception.

If the property arrive at the port of discharge, reduced in quantity or value, to any amount, the loss cannot be said to be total in reality, and the insured cannot treat it as a total, and demand an indemnity for a partial loss. There is no instance where the insured can demand as for a total loss, that he might not have declined an abandonment, and demand a partial loss. But if the property insured be included within the memorandum, he cannot, under any circumstances, call upon the insurer for a partial loss, and, consequently, he cannot elect to turn it into a total loss. These principles

are clearly established by the case of Mason v. Skurray,* [ * 225 ] at N. P. 1780; Park, 116; Marshall, Condy's ed. 223; Neilson v. The Columbian Insurance Company, 3 Caines's R. 108; Cocking v. Frazer, Park, 114; Marshall, 227, Condy's ed.; M'Andrews v. Vaughan, at N. P. 1793, Ib.; Dyson v. Rowcroft, 3 Bos. & Pul. 474; and Magrath and Huggins v. Church, 1 Caines's R. 196. The only question that can possibly arise, in relation to memorandum articles, is, whether the loss was total or not; and this can never happen where the cargo, or a part of it, has been sent on by the insured, and reaches the original port of its destination. Being there specifically, the insurer has complied with his engagements; every thing like a promise of indemnity against loss or damage to the cargo being excluded from the policy. If the question turn upon the totality of the loss, unconnected with the subject of loss, by deterioration of the cargo in value, or reduction in quantity, there is no difference between memorandum and other articles. If the loss be total in reality, or is such as the insured is permitted to treat as such, he is entitled to abandon and recover as for a total loss in the case of memorandum articles, but always with this exception, that he is not permitted to turn a partial into a total loss. Keeping this distinction in view, the loss of the voyage by capture, shipwreck, or otherwise, may be treated as a total loss. This is the doctrine in the case of Dyson v. Rowcroft, in which the right to abandon was placed, not upon the ground of deterioration of the cargo, but upon the justifiable necessity which resulted from it of throwing the cargo overboard; this was, in [226] effect, the same thing as if it had, in a storm, been swept 45

VOL. III.

Morean v. United States Insurance Co. 1 W.

from the deck. Such, too, was the case of Manning v. Newnham, Park, 169. In Cocking v. Frazer, no such necessity existed, and the breaking up of the voyage was attempted to be justified by the damaged state of the cargo, which, per se, did not justify the insured in putting an end to the voyage, and thus to turn a partial loss, for which the insurer was not liable, into a total loss. Magrath and Huggins v. Church establishes the same doctrine. Now, what is the present case? The ship being thrown on shore, within a mile or two from her port of destination, the agent for the insured employs persons to unlade as much of the cargo as could be saved, and nearly one half was, by his exertions, landed, dried, and sent to the market at Lisbon, and sold by the consignees, at about one quarter the price of sound corn, leaving a very inconsiderable sum for the owner, after paying the expenses. Is not this precisely the case of Neilson v. The Columbian Insurance Company, and Anderson v. The same, 3 Caines's R. 108, with this difference only, that in the first case the insured declined sending on the corn, when he might have done so, and, consequently, he was not permitted to turn a partial into a total loss by his own neglect; and, in the latter case, part of the cargo having been rescued from the wreck, before the offer to abandon was made, the insured could

not claim as for a total loss, either on account of the injury [ *227 ] which the corn had sustained, or of his own act in not sending it forward to its port of destination. In the case now before the court, the cargo which was saved was sent forward and sold at the port of its destination.

In addition to the cases above referred to, the cases of Biays [*228] v. The Chesapeake Insurance Company, 7 C. 415, * and Mar

cardier v. The same, 8 C. 39, in this court, are strongly appli[* 229 ] cable to the present, and seem in a *great measure to settle it. But it is contended, by the counsel for the plaintiff, that if [*230] the loss be such * as that the insured might at one time have

treated it as total, it continues to be so, unless at the time [* 231 ] * when the offer to abandon is made, it is restored to his possession, clear of the effects of the peril, and in a condition to prosecute the voyage. Now, this is certainly not the condition of property, which, at the time of the offer to abandon, is in the possession of a recaptor, who has a right to retain it until he is paid his salvage. But, in the present case, the corn never was out of the possession of the agents of the insured, who exercised every act of ownership over it, subject, nevertheless, to the laws and customs of the country to which it was sent, with which the insurer and insured are supposed to have been acquainted at the time they entered into this contract, and to which they impliedly agreed to